Appeal from a judgment entered in the United States District Court for the Eastern District of New York (Mishler, J.), granting appellees' motion for summary judgment, denying appellants' cross-motion for summary judgment, and granting a permanent injunction pursuant to the National Environmental Policy Act and the Ocean Dumping Act. Affirmed in part, vacated and remanded in part.
Altimari and Mahoney, Circuit Judges, and Cedarbaum, District Judge.*fn*
The Long Island Sound (the "Sound") is host to a myriad of recreational and industrial uses, including swimming, boating and fishing. Recreational users, commercial fisheries and environmentalists share a sometimes uneasy co-existence with use of the Sound as a waste dumping ground. Marinas and harbors which line the Sound must be dredged periodically to provide safe berthing for pleasure craft, commercial fishing boats, and military ships. The spoil from these dredging operations has for decades been dumped into the Sound. This litigation arises out of the ongoing effort of citizens and the federal government to balance the use of the Sound as a waste dumpsite with the need to protect its increasingly fragile waters.
The United States Army Corps of Engineers, et al. (the "Corps") appeal from a judgment entered in the United States District Court for the Eastern District of New York (Jacob Mishler, Judge), denying their cross-motion for summary judgment, and granting plaintiffs' motions for summary judgment and a permanent injunction. The district court held that a 1980 amendment to the Marine Protection, Research and Sanctuaries Act of 1972, 33 U.S.C. §§ 1401 et seq. (1982) ("Ocean Dumping Act" or "Act") applies to initial designation of an open water waste dumpsite in the Sound. The district court also held that an environmental impact statement ("EIS") submitted by the Corps was inadequate under both the Ocean Dumping Act and the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321 et seq. (1982 & Supp. III 1985) for its failure to discuss fully the types, quantities and cumulative effects of waste disposal at a new dumpsite. The district court enjoined the Corps from issuing dumping permits for dredged waste disposal in the Sound until the Corps issues a supplemental EIS which fully complies with NEPA and the Ocean Dumping Act.
On this appeal, the Corps contends that the Act does not apply to designation of a new dumpsite in the Sound because the Sound is inland not "ocean waters," and because permit applicants who were to utilize the new site were exempt from regulation under the Act. Specifically, the Corps argues that the Ocean Dumping Act as it relates to the Sound is triggered only when the Corps is presented with an application concerning a federal project or a non-federal project of more than 25,000 cubic yards ("cys"). In all other situations, according to the Corps, the Sound is governed by the Clean Water Act and not by the Ocean Dumping Act. The Corps also contends that its EIS was adequate because the Corps was required to consider the types, quantities and cumulative effects of waste dumping at the new site only on a case-by-case basis and not at the time the site was chosen. Finally, the Corps asserts that the district court erred as a matter of law when it issued an injunction prohibiting the Corps from violating NEPA.
For the reasons that follow, the judgment of the district court granting plaintiffs' motion and denying defendants' cross-motion for summary judgment is affirmed. The permanent injunction is vacated, and the case is remanded for further proceedings.
In the fall of 1980, the Corps received applications from 23 parties (the "Applicants") requesting permits to conduct dredging operations on their properties in Mamaroneck, New York and to dispose of the dredged material in an ocean dumpsite. The Applicants were mainly owners and operators of marinas in Mamaroneck Harbor located on the Sound. The Corps had previously announced its intention to dredge federal waterways in the area, and the Applicants wished to take advantage of the presence of dredging contractors who were to perform the federal maintenance operation. They hoped to reduce the expense of their dredging operations since dredging equipment would already be in place in the harbor. Consequently, the Applicants initially requested to dispose of their waste material in an area called the "Mud Dump Site" where the Corps was also to dispose of its spoils. The Mud Dump Site, located in the Atlantic Ocean off the New Jersey coast, has been in use as a dredge waste dumpsite for more than seventy years and since 1960 has received over 9.5 million cys of waste. The Corps planned to add some 60,000-145,000 cys of waste from its Mamaroneck Harbor project; the Applicants collectively planned to add approximately 86,000 cys of waste, though no individual project was to exceed 25,000 cys.
Regulations promulgated under the Ocean Dumping Act require analysis of the types of sediments to be dredged before permits may be issued. To satisfy this requirement, the Applicants requested that the Corps accept the results of the Corps' own federal sampling of Mamaroneck Harbor. The Corps agreed to accept its data as representative of the Applicants' sediments and found that sediments from Mamaroneck Harbor would have no significant impact if disposed at the heavily used Mud Dump Site. On March 23, 1981, the Corps issued permits to the Applicants for the Mud Dump Site. However, because of fiscal and time constraints, the Applicants were not able to accomplish their dredging. As a result, on the same day that they were issued Mud Dump Site permits, the Applicants asked the Corps to modify the permits to allow disposal of their waste at "the closest available site" in the Sound.
In their modification request, the Applicants asked to be considered as a single entity in order to demonstrate the need for a dumpsite in the Sound, stating that they would "ultimately enter into a collective contract which would insure that the total yardage to be assembled and dumped would exceed 25,000 cubic yards." At the same time, they asked to be considered individually in order to avoid the environmental testing requirements of the Ocean Dumping Act. The Corps issued a public notice of the modification request and indicated that test results from the previous Mamaroneck Harbor study would be used to evaluate the request. The Corps granted the Applicants' request, permitting them to dump at the Central Long Island Sound ("CLIS") dumpsite located off the shores of New Haven, Connecticut.
On September 1, 1981, the Applicants again requested that their permits be modified, this time to allow dumping further west in the Sound. The purpose of the modification was to gain access to a site which would entail lower transportation costs than the CLIS site. The Applicants, still acting collectively, stated that the new modification might be "the difference between the entire project going forward, being severely cut back, or indefinitely postponed." However, of the 19 historically used sites scattered throughout the Long Island Sound, 16 had been closed for environmental reasons, leaving the western Sound without a dumpsite. In order to fulfill the modification request, the Corps was required to designate a new dumpsite. The Applicants suggested that there were several potential sites which could be used, including "the triangle site bordered by the old [closed] Stamford, Norwalk and Eatons Neck Dump Sites." The Corps adopted this suggestion, proposing to designate this site located off the shores of Huntington, New York as Western Long Island Sound III ("WLIS III"). The Corps also proposed to utilize the newly designated site as the repository for spoils from additional federal dredging projects. In its public notice announcing the proposal to designate WLIS III, the Corps listed two "planned Federal projects which could be served" by the new site. The Corps intended to dredge 530,000 cys of waste from Flushing Bay, New York and 30,000 cys from Mianus River, Connecticut. With the addition of the 86,000 cys from Mamaroneck Harbor, the new site from its inception was intended to be the repository of at least 646,000 cys of dredged waste material--well in excess of the 560,000 cys projected for WLIS III by the Corps in its public notice.
The designation of a new dumping ground in the western Sound is a "major Federal action" requiring an EIS under NEPA. See 42 U.S.C. § 4332(2)(C). Accordingly, public hearings were held in late October 1981 to discuss designation of the new site. Predictably, those in attendance at the hearings held in Mamaroneck and Norwalk generally were in favor of the proposal, while those at the Huntington meeting generally were opposed to the site designation. On December 9, 1981, the Corps published its intention to submit an EIS for the WLIS III site, and issued its draft EIS ("DEIS") nine days later.
The DEIS was written to "describe the impacts" of designating an open water disposal site in the western Sound. In its discussion of the needs and objectives for the new site, the Corps stated that the proposed site would "service the ports and harbors within the Western Long Island Sound area" and cited the 23 Mamaroneck Applicants as potential users of the newly designated location. In its discussion of alternatives to the proposed action, the Corps specifically considered 13 potential sites, including WLIS III. The Corps immediately eliminated 11 of these sites, stating that eight sites had already been closed for environmental reasons, two were being used as lobster fisheries, and one was not viable because it was located in a cable area used by electric utility companies. The DEIS purported to analyze the remaining open water site, WLIS III, and the possibility of taking "no action."
Much of the data used in the DEIS was extrapolated from the draft of a programmatic EIS for Long Island Sound (the "DPEIS"). The DPEIS, undertaken several years earlier, was a generic impact study of dredged waste disposal in the entire Long Island Sound and was not intended to focus specifically on any single site. The Corps incorporated the DPEIS into the impact statement for the purpose of providing general environmental data about the area surrounding WLIS III.
Citing the fact that "there presently exists no chemical data on the sediments at the [proposed] site," the Corps omitted chemical analysis of WLIS III sediments in its EIS. Evaluation of water quality at the proposed site was also omitted, in favor of a generalized discussion of western Sound waters taken from the DPEIS. Analysis of specific environmental impacts of disposal at WLIS III were "to be addressed on a dredging project specific basis" at a later stage, when individual permit applications were evaluated. Although the DEIS indicated that there would be a "short term release of sediment contaminants into the water column" at WLIS III, the precise nature of the contamination "would depend on the nature of the sediments" which would not be known until after designation of the site. Similarly, analysis of toxicity to living organisms at the site was deferred to the permit evaluation stage as was analysis of chemical contamination to the floor of the WLIS III site.
The Corps solicited comments regarding the DEIS from relevant federal, state and local environmental agencies, and interested private citizens. Comments critical of the DEIS included letters from the Department of Commerce Office of Marine Pollution Assessment, the Fish and Wildlife Service, the Town of Huntington and numerous others. The Department of the Interior Office of Environmental Project Review complained of the lack of "critical analysis of alternatives" in the DEIS, stating that the majority of alternatives presented "appear [ed] to be 'straw men'" since most had either been closed or were committed to other uses. The Suffolk County Executive and the Long Island Sound Taskforce complained that the DEIS failed adequately to detail likely users of the new site. Most of the additional criticism received by the Corps was directed at the apparent haste ...